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Justice Fortas participated in 533 cases.
Joined with Majority440
Dissented56
Concurred14
Concurring in Judgment16
Did Not Participate42
Judgment of the Court2
Jurisdictional Dissent5

Fortas, Abe

Justice photo

Birth: June 19, 1910, Memphis, Tennessee.

Education: Southwestern College, A.B., 1930; Yale Law School, LL.B., 1933.

Official Positions: Assistant director, corporate reorganization study, Securities and Exchange Commission, 1934–1937; assistant director, Public Utilities Division, Securities and Exchange Commission, 1938–1939; general counsel, Public Works Administration, 1939–1940, and counsel to the Bituminous Coal Division, 1939–1941; director, Division of Power, Department of the Interior, 1941–1942; undersecretary, Department of the Interior, 1942–1946.

Supreme Court Service: Nominated associate justice by President Lyndon B. Johnson, July 28, 1965, to replace Arthur J. Goldberg, who had resigned; confirmed by the Senate, August 11, 1965, by a voice vote; took judicial oath October 4, 1965; nominated chief justice June 26, 1968; nomination withdrawn October 4, 1968; resigned May 14, 1969; replaced by Harry A. Blackmun, nominated by President Richard Nixon.

Death: April 5, 1982, Washington, D.C.


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Abe Fortas
Bibliography
Noteworthy Opinions

Abe Fortas

Abe Fortas is remembered more for the circumstances surrounding his abortive nomination as chief justice and his subsequent resignation than for his judicial opinions. This is unfortunate. Trained as a Washington lawyer during the 1930s, and later trusted as a close adviser to President Lyndon Johnson, Fortas, perhaps more than any other justice, provided a link between Franklin Roosevelt's New Deal and Johnson's Great Society. Although his tenure was brief and controversial, Fortas played a significant role in shaping some of the most important cases handed down by the Warren Court.

Fortas was born into a modest, working-class family steeped more in the cultural than the religious traditions of Judaism. From his father, an amateur musician, Fortas inherited a deep and abiding love of music and became an avid violinist, who later counted Pablo Casals and Isaac Stern among his friends and clients.

An outstanding student, Fortas won scholarships to Southwestern College in Memphis and to Yale Law School. At Yale, he served as editor in chief of the Yale Law Journal and came under the influence of two powerful exponents of legal realism: Thurman Arnold and William O. Douglas. After graduating in 1933, Fortas joined Yale's faculty while also accepting a position with Jerome Frank in the New Deal's Agricultural Adjustment Administration. In 1937, while serving at the Interior Department, Fortas befriended a young member of Congress from Texas named Lyndon Johnson.

In the 1940s Fortas left government service but remained in Washington to found a law firm with Thurman Arnold and Paul Porter. Fortas came to exemplify the Washington lawyer of the postwar era. An able and aggressive advocate, trained in government by the New Deal, he effectively navigated clients through the intricacies of federal policies and programs. Always drawn to men of power and influence, Fortas maintained his friendship with Lyndon Johnson during the 1950s, serving as his lawyer and close adviser until Johnson, as president, nominated his friend to the Court in 1965.

On the Court, Fortas developed a reputation as a liberal in civil rights and a conservative in areas involving government regulation of business. His opinions demonstrate an instrumental approach to the law but reveal no coherent legal philosophy. This is not to say Fortas was unprincipled—although some accused him of this—but that, true to his education in legal realism, he saw the law as a tool to achieve specific results.

Fortas's experience as a corporate lawyer led him to take a dim view of judicial interference in business matters. For example, in Baltimore & Ohio Railroad Co. v. United States (1967), Fortas in dissent argued that the Court had no business questioning the informed decision of the Interstate Commerce Commission to allow a merger of two railroads.

His greatest concern, however, was protecting the rights of minorities, the disenfranchised, and the powerless. He fiercely championed the rights of criminal defendants, especially their Fifth Amendment right against self-incrimination. In In re Gault (1967), Fortas wrote a strong opinion that effectively created a “Bill of Rights” for juvenile criminal offenders by extending certain basic Fourteenth Amendment due process rights into juvenile courts. Writing in a realist vein, Fortas relied more on historical, sociological, and psychological studies of the juvenile justice system than on legal precedent to support his holding.

Free speech was an area of special concern for Fortas, especially in the era of civil rights and anti-Vietnam War demonstrations. He was not, however, a First Amendment absolutist. To the contrary, he could not abide disruptive civil disobedience or symbolic speech that violated valid laws merely to dramatize dissent. The musician in him cherished harmony and decorum. He allowed for tension and conflict but insisted it be contained or structured. Therefore, in Brown v. Louisiana (1966), Fortas found a Louisiana breach of the peace statute unconstitutional as applied to several blacks who conducted a peaceful sit-in of a segregated public library. But in Street v. New York (1969), Fortas, in a stinging dissent, drew the line at flag burning, declaring that “protest does not exonerate lawlessness.” In his landmark opinion in Tinker v. Des Moines School District (1969), Fortas held unconstitutional a school's prohibition on black armbands worn by students to protest the Vietnam War. Echoing his support for juvenile rights enunciated in Gault, Fortas declared that students did not surrender their First Amendment rights upon entering a school. Wearing the armbands, he asserted, was akin to “pure speech” that did not involve “aggressive, disruptive actions” and did not interfere with the school's work.

Fortas also had a strong commitment to privacy as a constitutional right. Indeed, he saw the right to privacy as a significant limitation on freedom of the press. Consistent with his free speech cases (and with his deep personal antipathy toward the press), Fortas refused to extend First Amendment protections to press activities he considered to be intrusive or disruptive. His dissent in Time Inc. v. Hill (1967), which dealt with an alleged defamation by the press, is an example.

In 1968 President Johnson nominated Fortas to replace the retiring Earl Warren as chief justice. It was an honor from which he never recovered. The confirmation hearings took place after Johnson had decided not to seek reelection and had become a lame duck. Fortas soon became the target of a conservative backlash against the activism of the Warren Court and Johnson's Great Society programs. Revelations of his ongoing business connections with millionaire businessman Louis Wolfson added to the drama. Johnson was forced to withdraw Fortas's name. One year later, amid further allegations of improper business dealings, Fortas resigned from the Court, although he maintained his innocence. Back in the private sector, he was rebuffed by his old law firm, but continued to practice law until his death in 1982.

Bibliography

Fortas's own views can be found in his Concerning Dissent and Civil Disobedience (1968), a fascinating look into his ideas on the nature and limits of free expression in a civil society, made even more interesting by the fact that he wrote it while sitting on the Supreme Court.

There are two major biographies: Laura Kalman, Abe Fortas: A Biography (1990); and Bruce Allen Murphy, Fortas: The Rise and Fall of a Supreme Court Justice (1988). Murphy's book concentrates on Fortas's life as a Washington insider and is primarily a political biography. Kalman's is a solid study of Fortas's life and the first to be based on complete access to Fortas's private papers. Her work is therefore more complete than Murphy's and provides a good review of the development of Fortas's legal ideas. See also Kalman, “Does Character Affect Judicial Performance?” University of Colorado Law Review 71 (2000): 1385. John W. Johnson explores Fortas's most important opinion decision in The Struggle for Student Rights: Tinker v. des Moines and the 1960s (1997).

Noteworthy Opinions

Brown v. Louisiana, 383 U.S. 131 (1966)

Baltimore & Ohio Railroad Co. v. United States, 385 U.S. 3 (1967) (Dissent)

Time, Inc. v. Hill, 385 U.S. 374 (1967) (Dissent)

In re Gault, 387 U.S. 1 (1967)

Tinker v. Des Moines School District, 393 U.S. 503 (1969)

Street v. New York, 394 U.S. 576 (1969) (Dissent)

 

Document Citation
Fortas, Abe, in Biographical Encyclopedia of the Supreme Court 193 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18166-979222.
Document ID: bioenc-427-18166-979222
Document URL: http://library.cqpress.com/scc/bioenc-427-18166-979222